Ecologically sustainable development: More than mere lip service?

Australasian Journal of Natural Resources Law and Policy

Volumn 12, Issue 1, 2008, Pages 1-34

  Peel, Jacqueline ^a  

^a UNIVERSITY OF MELBOURNE   (Australia)

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EID: 66149165394     PISSN: 13205323     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (156)

1. th ed, 2006), 117.
2. Internationally the concept is known simply as 'sustainable development', reflecting the terminology used in the Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (1992).
3. See, e.g., Ecologically Sustainable Development Steering Committee, National Strategy for Ecologically Sustainable Development (1992)
4. Commonwealth of Australia, lIntergovernmental Agreement on the Environment (1992) ('IGAE').
5. Paul L. Stein, 'Are Decision-Makers Too Cautious with the Precautionary Principle?' (2000) 17(6) Environmental and Planning Law Journal 3.
6. See, e.g., the United Nations Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 164 (entered into force 24 March 1994), art 3(4);
7. and the Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 142 (entered into force 29 December 1993), art 6. Australia is a party to both conventions.
8. Stephen R. Dovers and John W. Handmer, 'Contradictions in Sustainability' (1993) 20 Environmental Conservation 217.
9. Douglas E. Fisher, 'Sustainability: the Principle, its Implementation and its Enforcement' (2001) 18(4) Environmental and Planning Law Journal 361.
10. E.g., Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 3.
11. A prominent example was the now defunct Resource Assessment Commission established by the Resource Commission Act 1989 (Cth).
12. Stephen Dovers, 'The Rise and Fall of the NSESD, or Not?' (1999) 4 Australian Environmental Law News 30.
13. Brown ν Forestry Tasmania (No 4) (2006) 157 FCR 1 (Brown'). On 9 February 2007, Forestry Tasmania announced that it would be appealing Justice Marshall's decision to the Full Federal Court: see Forestry Tasmania, 'Wielangta Appeal', Media Release, (9 February 2007) 〈http://www.forestrytas.com.au/ forestrytas/media-releases/wielangta-appeal.htm〉 at 2 July 2007).
14. Senator Bob Brown is fighting the appeal and the Commonwealth government has been granted leave to intervene. A decision is not expected, however, until later in the year.
15. Gray ν The Minister for Planning [2006] NSWLEC 720 (Unreported, Pain J, 27 November 2006) (Anvil Hill'). The New South Wales Minister for Planning did not appeal the judgement.
16. See, e.g., the many examples of ESD-related case law from around the world discussed in Justice Brian Preston, 'The Role of the Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific' (2005) 9 Asia Pacific Journal ofEnvironmental Law 109.
17. For instance, on the Brown case, see 'Wielangta Forest Federal Court Decision', Transcript of The Law Report (presented by Damien Carrick) (abc radio), 20 February 2007, avail 〈http://www.abc.net.au/rn/lawreport/ stories/2007/1850890.htm〉 at 2 July 2007. A storm of media controversy also surrounded Justice Pain's decision in Anvil Hill:
18. see, e.g., Anne Davies, 'Climate Ruling Alarms Industry', The Sydney Morning Herald (Sydney), 28 November 2006, 1;
19. Michael Jeffery, 'Courageous Decision Changes Landscape', The Newcastle Herald (Newcastle), 29 November 2006, 9;
20. Chris Merritt and Matthew Warren, 'Activist Judge in Objection to Mine', The Australian (Sydney), 30 November 2006, 6.
21. This phrase was used by Justice Marshall in the Brown case. His Honour found that in order for an exemption from the usual environmental protection requirements of the Environment Protection and Biodiversity Act 1999 (Cth) to be made out for an RFA, it was not sufficient that there is mere lip service paid to the RFA: (2006) 157 FCR 1, 34.
22. Stephen Dovers and Robin Connor, 'Institutional and Policy Change for Sustainability' in Benjamin J. Richardson and Stepan Wood (eds), Environmental Law for Sustainability (2006) 21,31-2.
23. Declaration of the United Nations Conference on the Human Environment, 15 June 1972, (1972) 11 ILM 1416.
24. World Commission on Environment and Development (chair: Gro Harlem Brundtland), Our Common Future (1987) 43.
25. Benjamin J. Richardson and Stepan Wood, 'Environmental Law for Sustainability' in Benjamin J. Richardson and Stepan Wood (eds), Environmental Law for Sustainability (2006) 1, 14.
26. Robert Goodland, 'The Concept of Environmental Sustainability' (1995) 26 Annual Review of Ecology and Systematics 1.
27. Resource Assessment Commission ('RAC'), 'Methods for Analysing Development and Conservation Issues: the Resource Assessment Commission's Experience' (RAC Research Paper No. 7, Resource Assessment Commission, 1992), 13.
28. See also, Holly Doremus, 'TheRhetoric and Reality of Nature Protection: Toward a New Discourse' (2000) 57 Washington and Lee Law Review 11, 64.
29. For a discussion of the world heritage litigation that took place in Australia in the 1980s, see Ben Boer, 'World Heritage Disputes in Australia' (1992) 7 Journal of Environmental Law and Litigation 247.
30. Elim Papadakis, Politics and the Environment: the Australian Experience (1993), 121.
31. This conference saw the development of the Rio Declaration, above n 1, and the action plan for sustainable development known as Agenda 21.
32. The NSESD was endorsed by the Council of Australian Governments ('COAG') in December 1992.
33. A series of additional policy documents, consistent with the NSESD framework and the 'cooperative' approach of the IGAE have since been developed for these sectors. These are the Commonwealth of Australia, "National Forest Policy Statement: A new focus for Australia's forests (1992)
34. Biological Diversity Advisory Committee, National Strategy for the Conservation of Australia's Biological Diversity (1996)
35. and Australian Greenhouse Office, The National Greenhouse Strategy: Strategic Framework for Advancing Australia's Greenhouse Response (1998).
36. Ecologically Sustainable Development Steering Committee National Strategy for Ecologically Sustainable Development (1992) 8. Without a reference to 'ecological' sustainability, sustainable development might be taken to refer to development or resource use that can continue over the long-term (e.g. logging of a forest that regenerates after harvest) without reference to broader environmental impacts.
37. Ibid. National Strategy for Ecologically Sustainable Development 1992 8
38. Ibid. 9 National Strategy for Ecologically Sustainable Development 1992 8
39. Ibid.8 National Strategy for Ecologically Sustainable Development 1992 8
40. IGAE, above n 2, s 3.5.
41. See Appendix 1 which gives examples of ESD legislative implementation in Australia.
42. Dovers, above n 9, 35.
43. On this topic, see Jacqueline Peel, The Precautionary Principle in Practice: Environmental Decision-making and Scientific Uncertainty (2005)
44. An exception in this regard, is the recent LEC decision in Telstra Corporation LtdvHornsby Shire Council (2006) 146 LGERA 10.
45. Fisher, above n 6, 364.
46. .(2004) 138 LGERA 237.
47. See also Carstens ν Pittwater Council (1999) 111 LGERA 1, 25; Murrumbidgee Ground Water Preservation Association ν Minister for Natural Resources [2004] NSWLEC 122 (Unreported, McClelland CJ, 7 April 2004);
48. BT Goldsmith Planning Services Pty Ltd ν Blacktown City Council [2005] NSWLEC 210 (Unreported, Pain J, 1 July 2005).
49. A contrast is provided by Chief Justice Preston's judgement in Bentley ν BGP Properties Pty Ltd (2006) 145 LGERA 234, 246, which stresses the link between prior EIA and approval processes and the achievement of the 'pillars' of ESD recognised in relevant NSW legislation (being the precautionary principle, inter-generational equity, conservation of biological diversity and ecological integrity, and the internalisation of external environmental costs).
50. BGP Properties ν Lake Macquarie City Council (2004) 138 LGERA 237, 262.
51. Although, in this case, the Court did conclude that the environmental impacts of the development were such as to warrant refusal of a development permit, the role of ESD in reaching this decision did not emerge clearly from the judgement.
52. See, e.g., Michael Hesse Associates Pty Ltd ν Parramatta City Council (2003) 131 LGERA 390;
53. Greenpeace Australia Ltd ν Redbank Power Co Pty Ltd (1994) 86 LGERA 143, 154-5. Hence some fear that rather than providing robust tools for resolving conflicts between economic and environmental goals, the 'rhetoric' of sustainable development could be used 'to paper over the nature problem, giving lip service to esthetic and ethical concerns while giving primacy to economic uses': Doremus, 'The Rhetoric and Reality of Nature Protection', above n 20, 65.
54. Conservation Council of SA ν Development Assessment Commission & Tuna Boat Owners Assn (No. 2) [1999] SAERDC 86 (Unreported, Trenorden J, Hodgson and Berriman Cmssnrs, 16 December 1999) ('Tuna Boat Owners').
55. For a discussion of the background to the case see Mark Parnell, 'Southern Bluefin Tuna Feedlotting - ESD, the precautionary principle and burden of proof (2000) Iss 41 Plaintiff 18.
56. Adaptive management involves allowing an activity on a small scale, monitoring its effects and adjusting the way the activity is undertaken in response to this data. For an overview of the nature and potential limitations of adaptive management, see Carl Walters, 'Challenges in adaptive management of riparian and coastal ecosystems' (1997) 1(2) Consei-vation Ecology 1 (online at 〈http://www.ecologyandsociety.org/voll/iss2/artl/〉, at 2 July 2007).
57. Tuna Boat Owners [1999] SAERDC 86 [33]. Although the tuna industry was undertaking some monitoring already, the ERDC found that 'the purpose of that collection and analysis is to ensure the maintenance of healthy tuna'. Consequently, it was 'not satisfied that this [existing] monitoring "covers the field" in terms of the health of the pelagic environment generally'.
58. Tuna Boat Owners [1999] SAERDC 86 [24]. The ERDC buttressed this conclusion by saying that, in circumstances of scientific uncertainty, the complainant would otherwise face a difficult task in showing that a development was likely to result in serious or irreversible environmental damage. It was sufficient for the complainant to show a prospect of such harm. The ERDC's ruling in this respect was upheld on appeal to the Full Court of the South Australian Supreme Court, which found that the ERDC's approach 'simply reflected what was inherent in one of the matters that the Court had to consider, the issue of ESD': Tuna Boat Owners Association of SA ν Development Assessment Commission (2000) 77 SASR 369, 374. However, the Supreme Court went on to stress that every case will turn on its own facts when it comes to the allocation of the burden of proof.
59. Tuna Boat Owners [1999] SAERDC 86 [41].
60. Tuna Boat Owners Association of SA ν Development Assessment Commission (2000) 77 SASR 369, 375.
61. The case, however, does seem to be encouraging a new movement in the case law to adopt 'adaptive management' conditions for development with uncertain long-term effects. See, e.g., Port Stephens Pearls Pty Ltd ν Minister for Infrastructure and Planning [2005] NSWLEC 426 (Unreported, Talbot J, 15 August 2005).
62. Caution is warranted, however, in applying adaptive management to environmental areas, like biodiversity conservation, where there is the potential for irreversible impacts: see further, Holly Doremus,- 'Adaptive Management, the Endangered Species Act, and the Institutional Challenges of "New Age" Environmental Protection' (2001) 41 Washburn Law Journal 50.
63. Bates, above n 1, 128.
64. Stein, above n 3,3.
65. Ibid.
66. Preston, above n 12.
67. Ecologically Sustainable Development Steering Committee, National Strategy for Ecologically Sustainable Development (1992) 8.
68. See, e.g., Andrew Darby, 'Beetle Gets by with a Little Help from its Friends', The Age (Melbourne), 20 December 2006, 5;
69. Andrew Darby, 'Forest Ruling Protects Species', The Sydney Morning Herald (Sydney), 20 December 2006, 7;
70. Angus Grigg, 'Logging Risks Chop: Ruling', Financial Review (Sydney), 20 December 2006, 7.
71. See above n 10.
72. The Regional Forest Agreement between the Commonwealth of Australia and the State of Tasmania (1997) 〈http://ww.daffa.gov.au/-data/assets/pdf-file/ 0003/49278/tas-rfa.pdf〉 at 18 July 2007.
73. For this and later amendments, see Australian Government, Department of Agriculture, Fisheries and Forestry, Regional Forest Agreement, Tasmania 〈http://www.daffa.gov.au/rfa/regions/tasmania/rfa〉 at 18 July 2007.
74. These requirements are set out in the Environment Protection and Biodiversity Consei-vation Act 1999 (Cth)s 18.
75. The RFA process has also been the subject of many criticisms, including the primary assumption of the need to ensure internationally competitive forestry activities in Australia, the inadequacy of data available on the environmental impacts of forestry practices, the haste with which some agreements have been concluded, the lack of provision for meaningful public involvement, and the limited opportunities for enforcement and review of the agreements. See, particularly, Jan McDonald, 'Regional Forest (Dis)agreements: The RFA Process and Sustainable Forest Management' (1999) 11 Bond Law Review 295.
76. This provision is mirrored by s 6(4) of the Regional Forest Agreements Act 2002 (Cth).
77. Brown (2006) 157 FCR 1,34.
78. Ibid. Brown 2006
79. Regional Forests Agreement 2002 (Cth) s 4, definition of 'RFA or Regional Forest Agreement', paras (b) and (c) (emphasis added).
80. National Forest Policy Statement (1992), above n 25, 6.
81. Ibid 7 National Forest Policy Statement (1992).
82. Tasmanian RFA, above n 53.
83. Brown (2006) 157 FCR 1,38.
84. See Environment Protection and Biodiversity Consei-vation Act 1999 (Cth) s 3(2)(e)(i).
85. Brown (2006) 157 FCR 1, 42-3.
86. Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 142 (entered into force 29 December 1993) ('CBD').
87. See also 'Environment Protection and Biodiversity Conservation Bill', Second reading speech, Commonwealth, Parliamentary Debates, House of Representatives, 29 June 1999, 7770 (Sharman Stone, Parliamentary Secretary to the Minister for Environment and Heritage).
88. Ibid. CBD, art 8. Parliamentary Debates, 1999.
89. Brown (2006) 157FCR1, 15.
90. quoting the evidence of the court-appointed expert on the Tasmanian wedge-tailed eagle, Mr Nicholas Mooney.
91. For discussion of the different positions, see 'The Wielangta Forest Federal Court Decision' transcript, above n 13.
92. See Forestry Tasmania, above n 10.
93. For details of the RFAs, see Australian Government, Department of Agriculture, Forestry and Fisheries, 'Regional Forest Agreements: Home' (last updated 19 January 2007), 〈http://www.daff.gov.au/rfa〉 at 2 July 2007. The covered forest regions are the Eden, North East (Upper and Lower) and Southern regions in NSW; the East Gippsland, Central Highlands, North East, Gippsland and West regions in Victoria; the South-West forest region in Western Australia; and the whole of the state of Tasmania. The Commonwealth and State governments completed a Comprehensive Regional Assessment for the South-East Queensland region, but have not signed an RFA.
94. Holly Doremus, 'Constitutive Law and Environmental Policy' (2003) 22 Stanford Environmental Law Journal 295, 297.
95. A. Dan Tarlock, 'Is There a There There in Environmental Law?' (2004) 19 Journal of Land Use and Environmental Law 213, 248.
96. NSW Department of Planning (Office of the Minister, Frank Sartor, MLA), Anvil Hill Proposal Approved, Media Release, (7 June 2007) 1.
97. A number of such 'climate change' cases are now being brought in courts around Australia and in other countries: see Jacqueline Peel, 'The Role of Climate Change Litigation in Australia's Response to Global Warming' (2007) 24 Environmental and Planning Law Journal 90;
98. Justin R. Pidot, Global Warming in the Courts: An Ovei-view of Current Litigation and Common Legal Issues (2006). One of the latest decisions handed down in Australia (which reached an opposite conclusion to that in Anvil Hill) is Xstrata Coal Queensland Pty Ltd [2007] QLRT 33 (Unreported, Koppenol P, 15 February 2007). This decision is currently under appeal:
99. See Anvil Hill Project Watch Association Inc ν Minister for Environment and Water Resource. Amended application for an order of Review, FCA, NSW Registry, NSD 870 of 2007 (10 July 2007), avail 〈http://www.envlaw. com.au/anviI10.pdf〉 at 18 July 2007.
100. Environment Protection and Biodiversity Consei-vation Act 1999 (Cth) s 75F.
101. Anvil Hill [2006] NSWLEC 720 [16].
102. Part 3A of the EP&A Act is specifically concerned with 'major infrastructure and other projects'. The lack of detail regarding environmental assessments in Part 3A contrasts with Part 5 of the Act, which contains the general environmental assessment provisions applicable to other projects.
103. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 79C(l)(b) and (e). In the case of Telstra Corporation Ltd ν Hornsby Shire Council (2006) 146 LGERA 10, 37, determined shortly before the Anvil Hill case by Preston CJ of the LEC, it was held that '[t]he consideration of the public interest is ample enough, having regard to the subject matter, scope and purpose of the EPA Act, to embrace ecologically sustainable development'.
104. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 5(a)9(vii).
105. ESD in the EP&A Act is given the same meaning as in s 6(2) of the Protection of the Environment Administration Act 1991 (NSW).
106. This provision provides that ESD 'requires the effective integration of economic and environmental considerations in decision-making processes' and states that ESD can be achieved through the implementation of the core ESD principles of precaution, inter-generational equity, conservation of biological diversity and ecological integrity and improved valuation, pricing and incentive mechanisms.
107. Anvil Hill [2006] NSWLEC 720 [109].
108. Her Honour pointed in this regard to cases such as Murrumbidgee Ground Water Preservation Association ν Minister for Natural Resources [2004] NSWLEC 122 (Unreported, McClellan CJ, 7 April 2004).
109. BGP Properties ν Lake Macquarie City Council (2004) 138 LGERA 237.
110. Bentley ν BGP Properties Pty Ltd (2006) 145 LGERA 234.
111. BT Goldsmith Planning Sei-vices Pty Ltd ν Blacktown City Council [2005] NSWLEC 210 (Unreported, Pain J, 1 July 2005).
112. Telstra Corporation Ltd ν Hornsby Shire Council (2006) 146 LGERA 10.
113. Anvil Hill [2006] NSWLEC 720 [115].
114. In this respect, the Anvil Hill case builds on Preston CJ's obiter remarks in the earlier judgement of Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234.
115. th ed, 2005) 10.
116. Anvil Hill [2006] NSWLEC 720 [118].
117. Anvil Hill [2006], 720, Ibid [122].
118. Anvil Hill [2006], 720, [122], Ibid.
119. Anvil Hill [2006], 720, [122], Ibid [124].
120. Anvil Hill [2006], 720, Ibid [126].
121. IGAE, above n 2, s 3.5.1. See also Protection of the Environment Administration Act 1991 (NSW) s 6(2)(a).
122. Paraphrasing Leatch ν National Parks and Wildlife Service (1993) 81 LGERA 270, 281-2, one of the leading Australian cases on the precautionary principle.
123. Anvil Hill [2006] NSWLEC 720 [131].
124. Anvil Hill [2006] 720,Ibid [134].
125. Anvil Hill [2006] 720, Ibid [135].
126. Annette Hughes and Julie-Anne Pearce, 'Environmental Impact Assessment Must Properly Assess Greenhouse Gas Emissions'
127. Aliens Arthur Robinson, Focus, (December, 2006) 〈www.aar.com.au/ pubs/ldr/focrdec06.htm〉 18 July 2007.
128. Anvil Hill [2006] NSWLEC 720 [137].
129. Hughes and Pierce, above n 96.
130. Anvil Hill [2006] NSWLEC 720 [138].
131. That does not mean, however, that the standard required for EIA is one of perfection. Ultimately Justice Pain determined that since the proponent had subsequently produced an assessment of indirect GHG emissions, which had been made available on the Department of Planning website, there was no need for a further public exhibition of the full environmental assessment for the Anvil Hill mine proposal: at [150].
132. Ibid [136].
133. Some authors thus conclude that project-based EIA is limited in its ability to contribute to ESD and suggest the need for processes of strategic environmental assessment to address 'integrative issues'.
134. see Carolyn Abbot, 'Environmental Command Regulation' in Benjamin J. Richardson and Stepan Wood (eds), Environmental Law for Sustainability (2006) 61, 75.
135. See also David Farrier, 'Fragmented Law in Fragmented Landscapes: the Slow Evolution of Integrated Natural Resource Management Legislation in NSW' (2002) 19(2).
136. Environmental and Planning Law Journal 89, 90, 98, 105.
137. Doremus, 'The Rhetoric and Reality of Nature Protection', above n 20, 64.
138. Andrew Macintosh and Debra Wilkinson, 'EPBC Act-The Case for Reform' (2005) 10(1).
139. Australasian Journal of Natural Resources Law and Policy 139, 164.
140. Chris McGrath, 'Key Concepts of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)' (2005) 22(1).
141. Environmental and Planning Law Journal 20, 37. McGrath points to the decision of the Federal Court in Booth ν Bosworth (2001) 114 FCR 39, 65 as support for this interpretation.
142. Brown (2006) 157 FCR 1, 15. Similar conclusions were reached in respect of the beetle (at 17), and the swift parrot (at 22).
143. Brown (2006) 157, Ibid 16.
144. Brown (2006) 157, Ibid 13.
145. Anvil Hill [2006] NSWLEC 720 [98].
146. See, particularly, Bell ν Minister for Urban Affairs and Planning (1997) 95 LGERA 86, 101.
147. Minister for Environment and Heritage ν Queensland Consei-vation Council Inc (2004) 139 FCR 24 {Nathan Dam case).
148. Minister for Environment and Heritage ν Queensland Consei-vation Council Inc (2004) 139, Ibid 38-9.
149. Anvil Hill [2006] NSWLEC 720 [84].
150. Anvil Hill [2006] 720, Ibid [100].
151. Do vers, above n 9, 3 I.
152. Richardson and Wood, above n 18. 17.
153. David Farrier has argued that too often the focus of environmental regulatory systems in the past has been on how we can allow development to proceed on a particular site, not whether we should allow it to go ahead.
154. David Farrier, 'Conserving Biodiversity on Private Land: Incentives for Management or Compensation for Lost Expectations' (1995) 19 Harvard Environmental Law Review 303, 353.
155. A useful model for a multi-use management regime of this kind is provided by the Great Barrier Reef management regime. For more information, see Australian Government, Great Barrier Reef Authority, 'Marine Park Management' 〈http://www.gbrmpa.gov.au/ corp-site/management〉 at 2 July 2007.
156. Farrier, 'Conserving Biodiversity on Private Land', above n 116, 353.